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iqbal NaraIn Srivastava Vs. the State of U.P. and anr. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtAllahabad High Court
Decided On
Case NumberWrit Petn. Nos. 148 of 1968, 943, 979, 1040 of 1969 and 101 of 1970
Judge
Reported inAIR1971All178
ActsUttar Pradesh Fundamental Rules - Rules 56; Constitution of India - Articles 14, 16, 245, 246, 309 and 367; Uttar Pradesh Fundamental Rule 56 (Amendment and Validation) Act, 1970; General Clauses Act, 1897 - Sections 21
Appellantiqbal NaraIn Srivastava
RespondentThe State of U.P. and anr.
Appellant AdvocateG.B. Mathur, ;S.C. Mathur and ;I.S. Srivastava, Advs.
Respondent AdvocateChief Standing Counsel
DispositionPetitions dismissed
Excerpt:
service - non publication of executive instruction - rule 56 (a) of u.p. fundamental rule, 1970 - rule 56 (a) provides for the issuance of executive instruction - their non publication is liable to be struck down by the article 14 and 16 of the constitution of india. - - trilok chand made a representation which was recommended by the executive engineer. his general reputation for honesty is good and i certify his integrity. 13. our attention is also invited to section 21 of the general clauses act which provides that where, by any central act or regulation, a power to issue notifications, orders, rules, or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind.....jagdish sahai, j. 1. these are 5 connected writ petitions in which thequestion raised is common, that is, whether the petitioners could be retired on attaining the age of 55 years under the provisions of rule 56 of the u. p. fundamental rules. sri iqbal narain srivastava (hereinafter referred to as sri srivastava) is the petitioner in writ petition no. 148 of 1968. he was working as a clerk in the bench of honorary magistrates, nawabganj, in the district of barabanki in may 1966. on 3-5-1966 he received a communication from the superintendent of the deputy commissioner, barabanki, informing him that he had been placed under suspension by means of an order dated 3-5-1966. this was followed by a charge-sheet in which it was alleged that sri srivastava had demanded a sum of rs. 2/- from ram.....
Judgment:

Jagdish Sahai, J.

1. These are 5 connected writ petitions in which thequestion raised is common, that is, whether the petitioners could be retired on attaining the age of 55 years under the provisions of Rule 56 of the U. P. Fundamental Rules. Sri Iqbal Narain Srivastava (hereinafter referred to as Sri Srivastava) is the petitioner in Writ Petition No. 148 of 1968. He was working as a clerk in the Bench of Honorary Magistrates, Nawabganj, in the district of Barabanki in May 1966. On 3-5-1966 he received a communication from the Superintendent of the Deputy Commissioner, Barabanki, informing him that he had been placed under suspension by means of an order dated 3-5-1966. This was followed by a charge-sheet in which it was alleged that Sri Srivastava had demanded a sum of Rs. 2/- from Ram Sagar son of Sarju Prasad. The petitioner submitted his explanation. The Deputy Commissioner, Barabanki, respondent No. 2, issued a notice to Sri Srivastava calling upon him to show cause why the punishment of removal from service be not awarded to him. Sri Srivastava submitted his reply and on 1-11-1966 the Deputy Commissioner, Barabanki, passed an order reinstating him on his post but made the following entry in his character roll ;

'Censured for demanding on 29-4-1966 Rs. 2/- from Ram Sagar son of Sarju Prasad for issue of copy of judgment in the case of Bharat v. Sarju and 2 others under Sections 323/506/424/397 I. P. C,' Sri Srivastava appealed to the Commissioner, Faizabad Division, who by means of the order dated 2-8 1967 allowed the appeal and ordered the expungement of the censure entry. During the pendency of Sri Srivastava's appeal, the Deputy Commissioner, Barabanki, considered the question of retention of Sri Srivastava in service as he had attained the age of 55 years and for that purpose called for a report from the Tehsildar. On 14-1907 the Deputy Commissioner passed an order that notice be issued to Sri Srivastava retiring him on attaining the age of 55 years. Sri Srivastava filed a representation before the State Government against the order compulsorily retiring him on attaining the age of 55 years. The State Government rejected the representation and the order of the Government was communicated to him on 21-10-1967. It is stated in the petition that earlier, that is in 1959, the question had arisen with regard to the retention of Sri Srivastava in service and the Board of Revenue by its order No. XII-215A/57 had directed that Sri Srivastava be permitted to continue in service until he had attained the age of 58 years. Sri Srivastava's case is that Rule 56 of the U. P. Fundamental Rules, so far as it gave the State Government the power to compulsorily retire a Government servant on his attaining the age of 55 years, is ultra vires the provisionsof Articles 14 and 16 of the Constitution and in any case inasmuch as the Commissioner allowed the appeal of Sri Srivastava the censure entry would not be deemed to exist, with the result that it could not be in public interest not to continue Sri Srivastava in service until he had attained the age of 58 years.

2. Writ Petition No. 943 of 1969has been filed by Trilok Chand. He was working as a confirmed overseer in the Irrigation Department of this State and was posted in the Ramganga River Project, Kalagarh. On 10-9-1968 a notice was served upon him under the signatures of the Chief Engineer retiring him from Government service with effect from 14-10-1969 on his attaining the age of 55 years. Trilok Chand made a representation which was recommended by the Executive Engineer. On 8-8-1969 a copy of the letter No. 5826/E-2/35 Misc./ 69 dated 25-64969 addressed to the Director, Ramganga River Project, Kalagarh, was served upon Trilok Chand in which it was stated that he (Trilokchand) may not be allowed to continue in service after he had attained the age of 55 years. The order of the Chief Engineer retiring the petitioner on attaining the age of 55 years and not allowing him to continue until he had attained the age of 58 years has been challenged in this petition.

3. Writ Petition No. 979 of 1969 has been filed by B. P. Srivastava. He was working as an Accounts Officer (Gazetted) in the Co-operative Department in December, 1956. According to his allegations he was taken seriously ill in the year 1965 and had to go on long leave. After recovery he joined his post on 14-7-1966 and worked continuously till 9-7-1969, but before that he had received a notice under the signatures of the Secretary Co-operative Department informing him that he would be retired from service on the expiry of 3 months from the date of the receipt of notice under the provisions of Rule 56 of the U. P. Fundamental Rules. By means of this petition the notice compulsorily retiring Sri B. P. Srivastava is sought to be quashed.

4. Writ Petition No. 1040 of 1969 has been filed by Achal Behari Lal (hereinafter referred to as Sri Lal). He was appointed in the State service in the office of the Agriculture Engineer (Tractors), Lucknow, by the Chief Agriculture Engineer, U. P. He has alleged that even though he is a confirmed employee of the State, increments and salary due to him have not been given to him and for the redress of that grievance he made a representation to the higher authorities which annoyed the Director of Agriculture, U. P., the respondent No. 1. It isfurther alleged that due to this annoyance the petitioner has been retired under the provisions of Rule 56 of the U. P. Fundamental Rules on his attaining the age of 55 years by means of the order dated 11-8-1969 passed by the Director of Agri: culture U. P. It is further alleged that there are many public servants in the office where Sri Lal was serving who have crossed the age of 55 years and yet have not been retired. The petitioner made a representation on 3-10-69 and also submitted a reminder in respect of it on 23-10-69. He was, however, informed by the Joint Director Agriculture that the Government did not think it fit to revise the order of his (Sri Lal's) compulsory retirement. Sri Lal has filed this petition on the grounds, firstly that Rule 56 of the U. P. Fundamental Rules is violative of Articles 14 and 16 of the Constitution of India, secondly that discrimination has been practised against him, and thirdly that the order compulsorily retiring him is mala fide. He has prayed for the quashing of the order compulsorily retiring him.

5. Writ Petition No. 101 of 1970 has been filed by Sri Prakash Chandra Sayal (hereinafter referred to as Sri Sayal) who was working as senior assistant in the office of the Registrar, Cooperative Societies, U. P. He was appointed as Junior Assistant by the Registrar, Co-operative Societies, U. P., Lucknow, According to him he was confirmed in the senior scale by means of the order dated 18-5-1967. It is stated that in the month of May, 1967, Sri Sayal made a complaint against one Mohd. Shoaib, the Principal of Co-operative Training Institute. Jalalpur, in the district of Aligarh for his anti-national activities. This displeased the Deputy Registrar who suspended and put him under enquiry, the Deputy Registrar being a friend of Mohd. Shoaib. The following entry was made in the character roll of Sri Sayal:

'He is an old and experienced hand and quite efficient in his work......He hasno regard for office discipline and has submitted applications to the Secretary to Government and Police Authority against the Head Clerk directly which amounts to indiscipline. These complaints on enquiry were found to be quite false and baseless. He seems to be a frustrated type of man.

Nothing has come to my knowledge which casts any reflection on the integrity of Sri P. C. Sayal. His general reputation for honesty is good and I certify his integrity.'

6. Sri Sayal was served with a charge sheet to which he submitted an explanation on 8-3-1967. He was, however, reinstated but was not allowed thebenefit of full pay during the period of his suspension. Sri Sayal, therefore, filed an appeal before the Registrar, Co-operative Societies U. P., Lucknow, which according to the petitioner was dismissed by the Deputy Registrar (Head-quarters) who had no authority to do so. In the month of October, 1969, Sri Sayal received an order stating that he was to retire under the provisions of Rule 56 of the U. P. Fundamental Rules with effect from 25-1-1970, on which date he would attain the age 55 years. According to him he has put in 11 years 3 months and 10 days of service which is not sufficient to enable him to draw full pension. He has also stated that there are some employees in his own office who have also attained the age of 55 years, but have not been retired. He has sought the quashing of the order retiring him, inter alia, on the ground that Rule 56 of the U. P. Fundamental Rules is ultra vires, that discrimination has been practised against him, and that the order retiring him is mala fide.

7. The allegations made by the five petitioners, mentioned above, have been controverted by means of the counter-affidavit filed.

8. In 1968 Fundamental Rule 56 (a) was:

'56 (a) Except as otherwise provided in other clauses of this rule, the date of compulsory retirement of a Government servant, other than a Government servant in inferior service, is the date on which he attains the age of 58 years. He may be retained in service after the date of compulsory retirement with the sanction of the Government on public grounds, which must be recorded in writing, but he must not be retained after the age of 60 years except in very special circumstances, provided that:

(i) the appointing authority may at any time, without assigning any reason, require the Government servant to retire on three months' notice or pay in lieu of the whole or part thereof, after he attains the age of 55 years or such lesser age as together with the period of notice in lieu of which the pay is substituted would aggregate to 55 years, so, however, that in the case of pay being given in lieu of the whole or part of such notice the said period shall stand added to the Government servant's qualifying service for the purposes of calculating the pension and death-cum-retirement gratuity due to him, and for no other purpose; or

(ii) the Government servant may, after attaining the age of 55 years, voluntarily retire after giving three months' notice to the appointing authority.

Provided further that:

(i) the notice of voluntary retirement given under the first proviso by a Government servant against whom a disciplinary proceeding is pending or contemplated, shall be effective only if it is accepted by the appointing authority subject to the condition that in case of a contemplated disciplinary proceeding, the Government servant is so informed before the expiry of the notice.

(ii) the notice once given by a Government servant under the first proviso shall not be withdrawn by him except with the permission of the appointing authority.'

A Full Bench of this Court by a majority judgment in Kripa Ram Gupta v. R. K. Talwar 1969 All LJ 962 = (AIR 1970 All 296 (FB)) held on 26-11-1969 this provision to be ultra vires Articles 14 and 16 of the Constitution so far as it gave the Government the option to retire a Government servant after attaining the age of 55 years.

9. On 5-11-1969 the Governor of U. P. issued Ordinance No. VI of 1969. This was followed by the Uttar Pradesh Fundamental Rule 56 (Amendment and Validation) Act, 1970 (U. P. Act No. 5 of 1970). Section 2 of this Act reads:

'Amendment of Fundamental Rule 56 -- In clause (a) of Rule 56 of the Uttar Pradesh Fundamental Rules, published in the Financial Hand-book, Volume II Parts II to IV, hereinafter referred to as the said Rule 56 (a), for the existing provisos, the following provisos and Explanation shall be substituted, and be deemed to have been substituted with effect from January 1, 1964, namely :--

'Provided that--

(i) the appointing authority may, at any time without assigning any reason, require the Government servant to retire on three months' notice or pay in lieu of the whole or part thereof, after he attains the age of 55 years, or such lesser age as together with the period of notice in lieu of which the pay is substituted would aggregate to 55 years, so, however, that in the case of pay being given in lieu of the whole or part of such notice the said period shall stand added to the Government servant's qualifying service for the purposes of calculating the pension and the death-cum-retirement gratuity due to him and for no other purpose; or

(ii) the Government servant may, after attaining the age of 55 years voluntarily retire, after giving three months' notice to the appointing authority:

Provided further that--

(i) the notice of voluntary retirement given under the first proviso by a Government servant against whom a disciplinary proceeding is pending or contemplated shall be effective only if it is accepted by the appointing authority, subject to the condition that in case of acontemplated disciplinary proceeding, the Government servant is so informed before the expiry of the notice;

(ii) the notice once given by a Government servant under the first proviso shall not be withdrawn by him except with the permission of the appointing authority.

Explanation -- (1) The decision of the appointing authority under the first proviso to require the Government servant to retire as specified therein shall be taken if it appears to the said authority to be in the public interest, and the State Government may, from time to time, issue executive instructions indicating guiding principles in that behalf, but nothing herein contained shall be construed to require any recital, in the order, of such decision having been taken in the public interest or to require the publication of such instructions.

(2) Every such decision shall, unless the contrary is proved, be presumed to have been taken in the public interest. (3) 'Appointing authority' means the authority which has the power to make substantive appointments to the post or service from which the Government servant is required or wants to retire.'

10. The following submissions have been made before us :

1. The power of the U. P. Legislature is confined to the passing of a legislative enactment. This power is distinct from and does not include the power to frame or amend a rule including Rule 56 of the Fundamental Rules, on the principle that the power to make law extends also to the amendment of the law the U. P. Government alone could have amended Rule 56 of the Fundamental Rules and the U. P. Legislature could not do so.

2. That the effect of the passing of the Act is that Rule 56 of the Fundamental Rules is now partly the part of an Ad and partly the part of a Rule which is not legally permissible.

3. That the age of superannuation a? provided by Rule 56 itself is 58 years and the Proviso and the Explanation added to it are violative of Articles 14, 16 and 311 of the Constitution in so far as they confer on the appointing authority a right to terminate the services of a Government servant on attaining the age of 55 years.

4. That Article 309 of the Constitution is a self contained special provision dealing with Rules and Acts relating to recruitment and conditions of service of persons serving under the Union or a State and inasmuch as it provides that the rules if framed shall be valid only until an Act of the appropriate Legislature is passed now that there is an Act of the U. P. Legislature, Rule 56 of the Fundamental Rules so far as itis not a part of the Act ceases to existand is inoperative.

No other submission has been made.

11. I proceed to consider the submissions seriatim.

12. My attention has been drawn to Article 245 of the Constitution which provides that subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State and it has been contended that the Parliament or Legislature of a State can make laws only by passing Acts and they are not competent to frame rules. The argument, therefore, is that the U. P. Legislature could only pass an Act, that is, a Principal Act or an amending Act. It is further contended that the power to amend flows from the power to enact a law and inasmuch as the U. P. Legislature could not frame Rule 56 (rule-making power being with the U. P. Government) it could not amend it also.

13. Our attention is also invited to Section 21 of the General Clauses Act which provides that where, by any Central Act or Regulation, a power to issue notifications, orders, rules, or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notification, orders, rules or bye laws so issued.

14. The learned counsel contends that inasmuch as the U. P. Government had the power to frame the Fundamental Rules and Rule 56 was framed by them, the power to amend them can be exercised only in the like manner and subject to the like sanction and conditions and inasmuch ac the words 'in the like manner' would include by the same authority, Rule 56 could be amended only by the State Government and not by the U. P. Legislature.

15. The learned counsel completes his arguments on this point by inviting our attention to Article 367 of the Constitution which provides that unless the context otherwise requires, the General Clauses Act shall apply for the interpretation of the Constitution and submits that Section 21 of the General Clauses Act would be applicable for that reason in the present case. I am unable to agree with this submission. By virtue of Article 309 of the Constitution the U. P. Government can pass an Act in relation to the conditions of service of public servants under its control and once it does so any rule framed shall stand superseded to the extent of the legislative enactment. The U. P. Legislature is admittedly competent to pass an Act in respect of thematter with which Rule 56 deals. The power of the State Government to frame rules is not an independent power but only a delegated power of the U. P. Legislature. The U. P. Legislature can withdraw that power either expressly or by necessary implication. As the long title and the preamble would show the Act has been passed with a view to amend Fundamental Rule 56 and to validate certain actions. In the instant case it has maintained the first part of Rule 56 but has by means of the Act substituted the provisos and added the Explanation. True, Article 245 of the Constitution speaks of the laws being passed by the Legislature. An Act passed by a Legislature to amend a rule would also be an Act passed by it within the meaning of Article 245. In the first place, I see no applicability of Section 21 of the General Clauses Act in the present case. Secondly, the provisions of the General Clauses Act cannot be read to restrict the meaning of the words used by the Constitution nor can they control the power conferred on the Legislatures by the provisions of Article 245 of the Constitution. The power to amend is the same power as the one to pass the principal measure. It is true that the power to amend a law comes from the power to enact a law because if there is no power to enact a law there certainly cannot be a power to amend it. The power is the same and there is no duality about it. There is nothing in the Constitution which deprived the U. P. Legislature of the power of amending a rule which was framed by its delegatee authority, the State Government under its mandate. The power to make laws has been given to the U. P. Legislature in absolute terms by Article 245 of the Constitution and is subject to only one restriction, that is, it must, relate to a subject over which it has legislative competence (see Article 246 of the Constitution). In the instant case it is not denied that the U. P. Legislature is competent to pass laws relating to public services under its control.

16. Reliance is placed upon the following passage occurring at page 418 in 82 Corpus Juris Secundum and it is submitted that by means of a special Act a general law cannot be amended.

'If there is no constitutional prohibition against such a practice, there can he no objection to the amendment of a general law by a special Act. Under some constitutions, however, a general law may not be amended except by subsequent general legislation. So, under a constitutional provision that no special law shall be enacted in any case for which provision has been made by an existing general law, an attempt to amend an existing general law by special law is invalid.'

It is difficult to see how this extract from Corpus Juris Secundurn helps thepetitioners. Rule 56 is a special law as it deals with public servants. The Act is also a special law because it also deals with the public servants. Rule 56 and the Act deal with the same subject matter the one contemplated by Article 309 of the Constitution. Consequently, there is no conflict between the general and the special in the present case.

17. I, therefore, find no merits in the first submission of the learned counsel for the petitioners.

18. Coming to the second submission it is not correct to say that Rule 56 is now partly an Act of the Legislature and partly a rule. It is still a rule though parts of that rule have been introduced by means of a legislative enactment of the U. P. Legislature. The State Government was only a delegatee of the U. P. Legislature and the source of its power is the power of the Legislature. What the delegatee can do a deiegator can also do specially when the deiegator, the U. P. Legislature, has been conferred very wide powers of legislation under Article 245 of the Constitution. Nothing has been shown to us to justify the conclusion that a rule cannot be amended by a legislative enactment.

19. It is admitted that it was open to the U. P. Legislature to pass an Act incorporating the entire Fundamental Rule 56 as it stands today after the amendment by the U. P. Legislature. If for the sake of convenience it allowed the rule to stand but amended some part of it so as to bring it in tune with its policy, no objection can be taken. It is only a convenient way of drafting and does not go to the root of the matter relating to the competence of the State Legislature. It is well settled that Courts cannot question the manner in which a Legislature would draft its measures or acts and any defect in drafting does not go to the root of the matter. The position might have been different if the case of the petitioners had been that the U. P. Legislature was not competent to enact in respect of the subject-matter of Rule 56, but once it is conceded that it could enact the entire Rule 56 there could possibly be no ground on the basis of which it can be held that it could not amend only those parts of the rule which it wanted to go and which it wanted to be substituted by other provisions. The power to do the whole would include the power to do a part, though the vice versa may not be correct always.

20. In my opinion, there are no merits in the second submission also with regard to third submission it may be pointed out that in Kripa Ram Gupta v. R. K. Talwar, 1969 All LJ 962 = (AIR 1970 All 296 FB), it was held that the age of superannuation of a U. P. Government servant is 58 years. It was also heldby a majority that the Proviso in Rule 56 of the Fundamental Rules conferring on the Slate Government the power to retire a Government servant compulsorily on his attaining the age of 55 years, is violative of Articles 14 and 16 of the Constitution and for that reason invalid.

21. In that case mine was the minority view. I had held that the Proviso in Rule 56 was not bad for the following reasons:

1. That if the Government had the option to retire a Government servant on attaining the age of 55 years, the Government servant had also the option to retire on attaining that age unilaterally and for that reason there was parity between the Government and the Government servant, with the result that there was nothing in the proviso which gave the government any advantage;

2. That the age of superannuation was raised from 55 years to 58 years simultaneously' with the framing of the provisos and the two cannot be severed. The rule-making authority raised the age of superannuation from 55 years to 58 years only because it also empowered the appointing authority and the public servants to retire on attaining the age of 55 years. It would not have increased the age of superannuation if there was no power under the provisos. In other words, the increase in the age of superannuation and the two provisos were integral parts of the same measure and the two cannot be separated from each other;

3. That the power given to the appointing authority under the proviso did not in any manner violate Articles 14 and 16 of the Constitution of India; and

4. That though theoretically it could be said that the age of superannuation is 58 years, the effect of reading the provisos along with Clause (1) of Rule 56 was that for all practical purposes the age of superannuation was 55 years.

22. Since then a case has been decided by the Supreme Court a reference to which has become necessary in this case. In Union of India v. J. N. Sinha, (1970) 2 SCC 458 = (AIR 1971 SC 40), Fundamental Rule 56 (.1) was considered by the Supreme Court. That provision, so far as relevant for our purposes, reads:

''Notwithstanding anything contained in this Rule the appropriate authority shall, if it is of the opinion that it is in the public interest so to do have the absolute right to retire any Government servant by giving him notice of not less than three months in writing or three months pay and allowances in lieu of such notice.'

Dealing with this rule Hegde, J. who spoke for the Supreme Court, observed:

'One of the conditions of the 1st respondent's service is that the Governmentcan choose to retire him any time after he completes fifty years if it thinks that it is in public interest to do so. Because of his compulsory retirement he does not lose any of the rights acquired by him before retirement. Compulsory retirement involves no evil consequences. The aforementioned Rule 56 (j) is not intended for taking any penal action against the Government servants. That rule merely embodies one of the facets of the pleasure doctrine embodied in Article 310 of the Constitution. Various considerations may weigh with the appropriate authority while exercising the power conferred under the rule. In some cases, the Government may feel that a particular post may be more usefully held in public interest by an officer more competent than the one who is holding. It may be that the officer who is holding the post is not inefficient but the appropriate authority may prefer to have a more efficient officer. It may further be that in certain key posts public interest may require that a person of undoubted ability and integrity should be there. There is no denying the fact that in all organizations and more so in Government organizations, there is good deal of dead wood. It is in public interest to chop off the same. Fundamental Rule 56 (j) holds the balance between the rights of the individual Government servant and the interests of the public. While a minimum service is guaranteed to the Government servant, the Government is given power to energise its machinery and make it more efficient by compulsorily retiring those who in its opinion, should not be there in public interest.

It is true that a compulsory retirement is bound to have some adverse effect on the Government servant who is compulsorily retired but then as the rule provides that such retirements can be made only after the officer attains the prescribed age. Further, a compulsorily retired Government servant does not lose any of the benefits earned by him till the date of his retirement. Three months notice is provided so as to enable him to find out other suitable employment.' I derive support for the view that I have taken in Kripa Ram's case, 1969 All LJ 962 = (AIR 1970 All 296 (FB) ) and I propose taking in this case from the observations of the Supreme Court extracted above.

23. I would also like to place reliance upon T. G. Shivacharana Singh v. State of Mysore, AIR 1965 SC 280, where the Supreme Court was called upon to consider the validity of Rule 285 of the Mysore Civil Services Rules, 1958. It is similar to our Rule 56.

24. Sri Gajendragadkar, C. J., who spoke for the Court observed:

'Mr. Venkataranga Iyengar contends that this Rule is invalid, because it contravenes Article 14 as well as Article 16(1) of the Constitution. In our opinion, this contention can no longer be entertained because it is concluded by a long series of decisions of this Court. Recently, a Special Bench of this Court had occasion to consider the validity of Rules 148 (3) and 149 (3) contained in the Indian Railway Establishment Code in Moti Ram Deka v. General Manager, North East Frontier Railway, Civil Appeals Nos.......In dealing with the problem raised in that case, this Court has made it perfectly clear that so far as the question of compulsory retirement is concerned, it must be taken to be concluded by several decisions of this Court. This Court then examined the relevant decisions on this point beginning with the case of Shyam Lal v. State of U. P., 1955-1 SCR 26 = (AIR 1954 SC 369), and it has observed that the law, in relation to the validity of the Rules permitting compulsory premature retirement of Government servants must be held to be well-settled by those decisions and need not be reopened.' In my judgment in Kripa Ram's case, 1969 All LJ 962 = (AIR 1970 All 29G) (FB) (supra), I have placed reliance upon other decisions also. I need not repeat those citations in this judgment. I see no reason to change the opinion that I had taken in Kripa Ram's case, 1989 All LJ 962 = (AIR 1970 All 296) (FB).

25. It is true that the view taken in Kripa Ram's case is that the age of superannuation is 58 years even though that is so, there is no reason to hold that the Government cannot retire a Government servant on his attaining the age of 55 years.

26. Now I would like to deal with the complication that has been created by the Explanation to Rule 56.

27. In Civil Misc. Writ No. 1254 of 1968 (All), decided by D. S. Mathur and Satish Chandra, JJ. on 23-24970, it was held by this Court that the Explanation to Rule 56 is valid. In the Explanation it has been provided that the Government can retire a Government servant in public interest on his attaining the age of 55 years. What is challenged before us is that part of this provision which provides that--

'the State Government may, from time to time, issue executive instructions indicating guiding principles in that behalf, but nothing herein contained shall be construed to require any recital, in the order, of such decision having been taken in the public interest or to require the publication of such instructions.'

The submission is that the rule-making power operates in the field of legislation though it may be delegated legislationand that a rule cannot be transplanted upon by executive instructions which do not operate in the field of legislation but in that of departmental instructions. It is also contended that the issuance of executive instructions from time to time will make Rule 56 flexible and uncertain. It is also submitted that the non-publication of the executive instructions would result in secrecy relating to the matter of rules governing a public servant and on the principle that no law can be enforced without proper publication it has been contended that Rule 56 becomes inoperative as for all practical purposes the executive instructions become an integral part of it without being published. Arguments were also advanced that Rule 56 is to be administered by the appointing authorities, but they would not be able to observe any objectivity when their decisions are to be controlled by secret executive instructions which are not part of Rule 56 but are still to control its administration. It is not necessary for me to dilate on this point because in my opinion the submissions made by the learned counsel for the petitioners on this point are well founded. On all the grounds on which the provision relating to the issuance of executive instructions has been challenged, I hold that that part of Rule 56 is hit by Articles 14 and 16 of the Constitution, it is also bad in so far as they (executive instructions) require the appointing authorities to act en material provided by them which material is extraneous to and is not part of Rule 56 and which does not operate in the field of legislation at all. To this extent I respectfully disagree with the decision of this Court in Civil Misc. Writ No. 1254 of 1968 (All). But, even though that is so I am of the opinion that the provision relating to the issuance of executive instructions can be severed from the rest of the Explanation. The addition of the words 'in the public interest' in the proviso makes it clear that the authorities concerned have to look to the public interest while exercising powers under this rule. The expression 'public interest' is very well understood as it is in use in a large number of enactments and has come up for judicial interpretation on very large number of occasions. The addition of the words 'in public interest' in the Explanation to Rule 56 brings our Rule 56 in line to Rule 56 (j) (Central) which was considered by the Supreme Court in 1970-2 SCC 458 = (AIR 1971 SC 40) (supra).

28. For the reasons mentioned above I am of the opinion that it is only that provision in the Explanation which provides for the issuance of executive instructions and their being not published which is liable to be struck down and I do so. I uphold the rest of the provisions of Rule 56 of the Fundamental Rules-

29. No arguments were advanced on the allegation relating to mala fides or with regard to discrimination or in respect of breach of Article 311 of the Constitution.

30. It has not been stated before us nor there is any evidence on the record to show that any executive instructions had been issued and the petitioners have been dealt with on the basis of those executive instructions. 1 would, therefore, dismiss all the petitions and direct the parties to bear their own costs.

G.D. Sahgal, J.

31. T hove gone through the judgment prepared by my brother Jagdish Sahai. I agree with him and have nothing to add. I may, however, point out that the pleas of discrimination and mala fide raised by the petitioners in Writ Petitions Nos. 1040 of 1069 and 101 of 1970 were not urged before us during the course of arguments and as such they do not deserve to be considered.

U.S. Srivastava

32. I agree and hove nothing to add.

O.P. Trivedi, J.

33. I have seen the judgment prepared by brother Jagdish Sahai, J. and I am in full agreement with his view.

K.B. Srivastava, J.

34. I agree and have nothing to add.


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